If Bishop Harry Kennedy were alive today he would be 97 years old. He became a bishop 41 years ago and retired 21 years ago. Chances are that, like others of his fellow bishops, he was a man of his times.

Thirty-one years ago he ordained a new priest - "Father F" - and sent him to Moree parish in the Armidale Diocese. Two and a half years later, Kennedy abruptly terminated Father F's appointment and sent him on "what was euphemistically called 'sick leave'," to use the language of retired judge Antony Whitlam QC, who has conducted a thorough inquiry into the case of Father F. A psychologist subsequently gave him the "all clear" for continued ministry.

Three years after the termination of Father F's Moree appointment, he was arrested and charged with serious sexual offences against a boy, Damien Jurd, who had been an altar boy for Father F in Moree. The magistrate improperly dismissed the charges. Father F continued to serve as a priest.

Kennedy being long dead, we will never hear his side of the story. But Whitlam has been scrupulously fair in concluding on the evidence available to him that Kennedy's later treatment of Damien's parents was a disgrace, Kennedy's failure to look into various matters was "utterly inexplicable" and his record keeping was abysmal.

If the spotlight of a retired judge were not thus applied to the issues which arose once Father F was moved from Moree to various other parishes in the dioceses of Armidale and Parramatta, it is unlikely that the present bishop of Armidale would have publicly acknowledged that Kennedy "failed in his duty of governance [of the diocese] and, more importantly, in his duty to the pastoral care of its people." It will be no surprise if the McClellan Royal Commission highlights such failings by some other bishops of that generation. The judicial spotlight is welcome.

The ABC 4 Corners program Unholy Silence, which precipitated the Whitlam inquiry, made much of a meeting on 3 September 1992 between Father F and three still serving senior clergy - Fathers Usher, Lucas and Peters. According to 4 Corners reporter Geoff Thompson, "What happened at the meeting is crucial to understanding the major flaws in the way the Catholic Church deals in-house with allegations of sexual abuse." This was the first of three such meetings between September and November 1992. The letter of Father Peters to his bishop eight days after the first meeting which was said to be "a short report on the meeting," disclosed five distinct admissions by Father F to sexual interference with children.

Having interviewed all three senior clerics and reviewed all available documentary evidence 20 years later, Whitlam concludes:

"Notwithstanding the honest differences in recollection, I do not disbelieve Fr Lucas and Mgr Usher. Accordingly if 'F' made no admissions that either of them considered could and should be reported to the police, then there was no 'cover-up' back in 1992."

Whitlam further observed that:

"There is nothing sinister in that situation. Nor do I consider that [the Peters letter of 11 September 1992] must necessarily be accepted as a more accurate record of the discussion."

In Unholy Silence, Cardinal Pell's edited remarks gave the impression that there was a contemporary file note relating to the meeting of 3 September 1992. He said, "The file note of that meeting ... does not show that [Father F] made any admission." Whitlam observed, "It would be unfortunate if that statement gave the impression that Father Usher's briefing note was a contemporaneous record of the meeting in question." In fact, the file note provided to His Eminence was drawn up on 6 June 2012. Speaking for Father Lucas on the program, Cardinal Pell said, "I've reported what the file note says and what he said about what happened at that particular meeting."

Two days after the program, the Archdiocese of Sydney issued a media statement pointing out that the Peters letter did not reflect the "notes of the meeting held by the Church's Professional Standards Office." Those notes were presumably not the file note to which His Eminence was referring. Unfortunately those notes do not appear in the Whitlam report.

Kerry O'Brien introduced Unholy Silence with the question, "why has this man [Father F] not been brought to justice?" He said the story would focus "on the failure of the Church at very senior levels, right up to the present day, to deal adequately with allegations of serious and predatory crimes, including the apparent failure to alert police." But having inspected all available materials and interviewed all key players still living, Whitlam provides a more complex tale. It's not just a matter of out of touch clergy failing to act justly, compassionately and transparently.

It is gratifying to see that Whitlam finds that "had procedures for reporting child abuse laid down in [Towards Healing] been in force in 1984 and observed in Moree at the time, 'F' would have been stopped in his tracks," and that "if those procedures had been in place in 1989 and followed in 'F's' case, there is no chance that [the Bishop of Parramatta] would have agreed to take him on." Daniel Powell, who became one of F's victims in Parramatta, would have been spared F's depredations.

On this point, however, it should be noted that Whitlam found serious fault with the reporting of two ABC programs concerning Daniel Powell:

"The Four Corners reporter wrongly suggested that a report by a nun of an incident involving 'F' and an altar boy at Merrylands precipitated the meeting on 3 September 1992. This error was compounded by the reporter on the 7.30 Report who implied that 'F's abuse of Daniel was discussed at that meeting. Daniel never made any allegations against 'F' until 2002."

This rather changes the story!

One of the matters for the Royal Commission will be to consider what should be the liability of the Church as an unsuspecting employer for the criminal acts of "an employee" like Father F who preys on an unsuspecting child like Damien Jurd. This will entail consideration of legal and moral questions about vicarious liability of employers for criminal acts of employees committed outside the scope of their employment and without knowledge of their employer, even if the employer be cautious and diligent. Another matter will be consideration of the strict liability of any employer, including the Church, for permitting a renowned offending employee to be placed in a position of threat to children.

It is gratifying that Whitlam had no substantive criticism to make of any of Bishop Kennedy's successors in Armidale, nor of either Bishop of Parramatta with whom Father F dealt.
Even the late Bishop Kennedy could have been helped if he had better counsel available on the psychology of child sex abusers. Back in those days, it was possible for a psychologist to write to Kennedy in July 1988 after assessing Father F and saying that "he no longer presents any problems for children or yourself" and "I would hope that 'F' will be given every opportunity to move beyond the cloud that still appears to hang over his head and receive the care and support he justly deserves after all this time."

After interviewing Father F himself, Monsignor Usher wisely counselled that another assessment be sought, noting:

"I gained the impression that he was unable to understand the seriousness of the matters with which he had been charged and was arrogantly dismissing the whole affair as a figment of other people's imagination."

After Kennedy's retirement, the new bishop took Usher's advice and sought an alternative professional opinion. The bishop was advised in 1992 that "'F' will be an ongoing risk," "a high risk of recidivism" and "the prognosis is not good." The new bishop acted promptly to have F withdrawn from all ministry.

The late Bishop Kennedy's incompetence might not have wrought such damage, especially to Daniel Powell, if the prosecution of F had been more competent. Whitlam found that the reasons of the magistrate in discharging F in 1988 were "plainly unsatisfactory and provide no support for his stated conclusion" and "reflect a flawed approach to the exercise of his jurisdiction to discharge." Whitlam says "it is difficult to see how a decision was made not to continue the prosecution of 'F' on an ex officio indictment."

There will be many complex lessons from the royal commission, and not just for Catholic bishops. Bishop Kennedy was not the only one out of his depth in the saga of Father F; practitioners in law and psychology were found wanting. Other than Kennedy, most of the senior clergy involved with F appear to have done their job credibly according to the values and practices of the time.

It is now for the royal commission to recommend how contemporary values and practices can be improved for the protection of children like Damien Jurd and Daniel Powell.

Father Frank Brennan S.J. is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

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Comments (8)

Stephen :

09 Feb 2013 7:16:16am

"A psychologist subsequently gave him the "all clear" for continued ministry".

"There will be many complex lessons from the royal commission, and not just for Catholic bishops. Bishop Kennedy was not the only one out of his depth in the saga of Father F; practitioners in law and psychology were found wanting. Other than Kennedy, most of the senior clergy involved with F appear to have done their job credibly according to the values and practices of the time".

My above comment was referring particularly to this quote from the article: Meant to include it. The deferring of 'guilt has a new player: It was the psychologists' fault. THEY should have known better.

"The magistrate improperly dismissed the charges. Father F continued to serve as a priest". Referring to the first 'trial' concerning the rape of poor Damien Jurd: Was it on purpose that this article forgot also to mention that (I believe) the judge was 'Catholic'.? 'Hierarchy' and 'clericalism' isn't restrained to the clergy. Same old, same old. All the Catholics in the highest realms of the social strata and who have the most to lose in prestige, bandy together to protect each other backsides at the expense of the poor, the uneducated, and children. In the "Boys of St Vincent" the same thing happened. But they also didn't get away with it: Justice catches up with all and reveals that we are all the same under our dress and education.

workers at the coal-face :

Yes, psychologists have got their assessments wrong so many times even in other medical situations.

"the thing that the Catholic Church has most struggled with is their unwillingness to give these offenders up to the criminal justice system".

But you too have been misinformed:

It is NOT the case that canon law was ever used to supplant actual criminal law. In fact Canon law process (eg as in being professionally “struck out”) can only take place AFTER civil action (prosecution, trial, sentencing) AND the cases which have been referred to the Vatican have been referred precisely in order to ENSURE that appropriate action IS taken.

Prominent US lawyer Alan Dershowitz CRITICISES Geoffrey Robertson’s arguments (against the Pope) as containing SERIOUS ERRORS of fact and judgement. Many other legal experts have reached the same conclusion as Dershowitz:

Geoffrey Robertson seems to have allowed himself to be swept along by the fashionable tide of anti-Catholic jingoism.

Dershowitz (supported by other independent lawyers, who examined all the Pope’s documentation immediately on request) says: “Robertson is WRONG” …This is not a crime against humanity (under international law) - this is a series of crimes by INDIVIDUAL priests and others throughout the world (who should certainly be prosecuted) and failures by institutions to come to grips with it quickly enough…. But the Pope…most definitely has taken steps to change everything” … “there's NO evidence at all that it came from the very top and that was in any way attributable to the Pope” …

ALAN DERSHOWITZ says: “The evidence that I've seen - I've seen letters, I've seen correspondence, shows to me that the evidence is not there. I would not have any objections to opening up files“. So “largely it was the fault of law enforcement. Law enforcement had NO barriers at all to going in and aggressively prosecuting these crimes” (and because) “…there were and “are so many people who are falsely accused (for purposes of extortion)… many prosecutors just refused to do it… but you don't blame the Church when law enforcement fails to prosecute “ for “lack of evidence”.

Truth should always be the goal - so it is essential to get ALL the facts before making an uninformed statement.

P :

19 Oct 2013 12:47:37pm

Egg on face?I know Father FI know his other connectionsI know who complained in Armidale about his innapropriate behaviour with Altar ServersI know how that was dealt with and swept under the carpet and the buck does not stop with the Figurehead of the Diocese at the time the late Bishop Henry James Kennedy but also the Administrator of the Diocese and Parish who was also headed up the Catholic Education Office who hired a man as a 'clinical psychologist' and school counsellor for the local Catholic school.

How do I know this?I was the complainant!I was also subsequently abused by this counsellor who currently faces multiple charges in WA!

Father John George :

08 Feb 2013 7:08:48pm

Yes it amazes me that Fr F was given all clear by his psychologist with loads of positive affirmation[cf Whirlam Report.] Absurdly in USA bishops followed the therapeutic model also and recycled priest offenders on advice from psychologists,[ that profession never footed the 2 billion dollar compensation bill]-[thus another level of cover up not yet uncovered-I suggest those Dr Sickmind Frauds ought not sleeo easily on their cathartic couches during the Royal Commission.Of course the DMS-4 Manual for psychiatrists does not consider pedophilia a mental disturbance unless it causes the pedophile "anxiety and depression"[the coming DSM-5 is hardly going to be more enlightening[it pays heed to mere social attitudes to paraphilias [flavour of the month diagnostics?]. Time to bring the psychiatric community to account pronto

Stephen :

12 Feb 2013 7:52:54am

'C' for clericalism is just one step away from 'D' for deflect, deny, dissociate, doubt, denigrate". Where does the buck stop, my friend. One thing Jesus showed us was that even though He was in no way guilty of anything, the buck stopped with Him and the bishops/cardinal/priest of the church are supposed to represent Him, aren't they?. For you to say that the cleric/hierarchy relied on psychology for the truth would fly in the face of their particular ontological stance, would it not. You seem to be placing psychiatry in an even higher place, somehow than the Spirit inspired church. If you believe that it is "Time to bring the psychiatric community to account", then would it not follow that the same applies to the church (which is what is happening) if both were as stupid and blind as you suggest when you say ABSURDLY in USA bishops followed the therapeutic model also and recycled priest offenders on advice from psychologists? All are punished and all are guilty. You, me, the laity but not until the buck stops with true followers of Christ will anything be resolved, especially for the victims, remember them, the ones who are really suffering and not just existentially or theologically.

pat moore :

08 Feb 2013 11:04:32am

The claim Frank Brennan makes that the Catholic Church has been "an unsuspecting employer" of paedophiles (and is that word even used in the essay?) is a bit of a stretch. Nor is it "difficult to see" as Antony Whitlam stated why the unnamed magistrate "improperly dismissed" the charges against Father F. I would hazard a guess that he was Catholic and this is the way that male tribalism works across all patriarchal institutions, the law, politics, religion etc. Witness Obeid.

That occulted tribalism/loyalty to one's group is actually that "web of incompetence that compounded the crimes of Father F". And is the reason Catholic church paedophilia (wrong word, not "love", but abuse) has actually been a hidden but abetted quasi institution within the larger institution, its long-held dirty little secret. This is born out by the fact that Catholic paedoabusus is actually small c catholic in the sense of being universal, though kept occulted, across Catholicized cultures. And that it is a systematic pathology across a minority of a celibate priesthood. The psychological motives for such behaviour necessarily run deep into the subterranian territory of stoppered/ deviated libido but they are no doubt convoluted with the sexual politics and theological doctrine of a male dominant patriarchal misogynist religion.

The finger in the dyke of artful legalese amelioration is not going to stop the flood of outraged retribution against this long suppressed atrocity. Though the church may think it has ownership & control of the flock's souls, even celibate men would have heard of the legendary rage of a mother against those who prey upon her children.

Hudson Godfrey :

07 Feb 2013 12:27:30pm

Frank,

You went on 7:30 last year and gave pretty well the only creditable account of yourself I've seen any figure within the Catholic church offer in relation to this issue. You seemed genuinely remorseful about it and acknowledged in the case of Cardinal Law how far this problem reaches.

It may be a sub-editor who coined the heading of your article here today, using the words "web of incompetence", but painful as it is to say so, it is more readily seen as a web of deceit.

I think, as I have long done, that the thing that the Catholic Church has most struggled with is their unwillingness to give these offenders up to the criminal justice system.

Internal processes are seen only as compassionate to the offenders, and widely suspected of short changing victims because settlements on their behalf have usually been confidential. The sheer number of cases known to have not been reported to police simply can't be squared away with a complete absence of cases that were.

If we were having to discuss how police were dealing with such allegations then I think you'd have to agree that at least their willingness to investigate probably wouldn't be the issue.

I don't think we're going to reach the point where the community will be willing to accept apologies until cases of abuse are treated by the church as reportable just as they are in any other setting.

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